The weekly Floridian. [volume] (Tallahassee, Fla.) 1867-19??, 1887-07-14

The First National Bank Of Florida ct a.. Ap-
psllants, W William 81. Ashmoad ct ux., Ap'
pellees-Duval county.

RoAA14t9p
pellees-Duval county.
RANEY, j.:
1. In the admission Of oral testimony 70 prove
that deed absolute In form was made to secure
the payment Of money, and 10, consequently, In
equity, and under our statute, mortgage, tnefe
is no violation of the rule which precludes the
admission Of oral testimony tor tho p9rpoee o.
OF which written instrument b the repository:
In admitting It for the former purpose. The court
looks beyond the terms Of the instrument to the
real Transaction or what was Intended 70 DO
effected By the parties their object ~ ecscutsng
and rsosicinc to desd and equity. In the exer.
carry out this object, and prevent fraud and i'm
position permit the introduction Of either written
or oral evidence.
Q. Parol evidence IL admissible to connect pa
pers which, together, constitute deed and de-
feasance, or mortgage, and to show that an IN.
was either executed at the same time, or that its
terms or substance were In fact agreed upon at
the same time, and though subsequently reduced
to writing constitutes part OF the same transac-
ton with the deed.
8. Where the instruments connect themselves,
ment of money. no parol proof is necessary, even
If II can be said to be admissible
4 deed from q debtor to a third person, II
made to secure the payment OF money, ID as
much a mortgage as il made to the debtor for
such purpose and 10 this State the grantee takes
only specific lien on and not the legal title "a.
the property; and the fact that the object was 70
secure the payment of money may be proved by
oral testimony as well in the one case as in the
other.
8. A homestead Is the subject Of mortgage by
the husband and wife, and all the principles sta
ted above apply to deed of conveyance abso-
lutte in form, made by them of homestead, to Sc
cure the payment Of money.
8. Husband and wife executed deed convey
ing to 8. certain real estate The consideration
named, 5000, the husband acknowledges in the
deed to have received from 8. An agreement, Of
same date, executed by the husband and B., the
the cashier of bank, rectes that the husband
and his partner are indebted to the bank In the
sum of IS 161 O6, and that, in consideration OF
forbearapce by the bank, the husband and wife
had executed such deed and stipulates that If the
husband shall pay 10 the bank on or before
March 8, 1885, such sum with interest, and $1OO,
Indebtedness incurred for attorneys fees and keep
down taxes, and keep up insurance, and pay all
costs, charges and expenses the bank may be put
to by reason of the husbands non- performance OF
his part of the agreement, then 3. would recon-
vey the property to the husband and his heirs,
or any one the husband may appoint. The bank
and g. filed bill of foreclosure and sale, alleging,
inter aia that before and at the time of the execu
ton of the deed, the wife was informed that such
| deed was intended and prepared to be executed
by her husband and herself for the purpose OF Sc
curing the Indebtedness mentioned in said agree
| ment, and that she executed said deed with full
information of the contents OF the agreement, and
of said purpose and intent The appellees each
| filed plea setting up by proper averment that
| the property was on and before the date OF said
deed, and still is owned by said husband, and
| was and continues TO be the homestead OF said
husband and his family and their children.
Held: (A) That the pleas are insufficient
| ar no dQoA nd c0uSidered
either of themselves, or in connection with the
bill of complaint, constitute q mortgage.
| (C), That the purpose in executing the deed, as
shown BY the papers and pleadings, was to secure
the payment of the Indebtedness mentioned in
| the agreement on the terms stated therein.
| (Dl The deed did not convey the legal title of
the homestead to g., or vest him with any power
to convey it, and, consequently, the provision in
| the agreement as to his recOnveying is inopera-
| tive, or of no effect.
| z. Upon an application for rehearing of q
cause in this court, it is Irregular and an infrac'
lion of Rule "a, to accompany the petition with a
written argument, and the citation Of authorities
| or to assume any new ground or position not Ia
ken upon the argument, or In the points made
| upon which the cause was submitted. Snssm ana
Armistead o. Groom ct al, z Fh., 1870, appr0Sed
| g. Such petition is pleading, and should
merely state cOncisely the particular omission OF
cause for which the judgment is supposed to be
Decree reversed and rehearing denied
Randall, Walkers & Foster, for Appellants
A. w. Cockrell & Son. for Appellees.
Geo. w. Saxon s. Co. VS.. Edward W. Gam
BILE ct al.-Motion to discharge supersedeas.
MAXWELL, G. j.:
/. A supersedeas may be granted on an appeal
from an order OF the Circuit Court setting aside
| final decree of that court
g. In determining whether a supersedeas can
be granted, it is not necessary or proper to con-
slider the merits of the appeal
g. A Justice of the Supreme Court may grant
a supersedeas, Notwithstanding prior refusal OF
the Circuit Judge to grant it.
Motion denied.
D. 3. Walker, Jr., for motion; no counsel ap.
pearing contra.